Orrin Hatch

Mr. HATCH

Mr. HATCH. Madam President, none of these results--none of these death-penalty-eligible cases shown on these charts--would have been possible under S. 625--not one of them. This legislation, while federalizing hate crimes, would not allow capital punishment for those who murder savagely out of bigotry, prejudice, or hatred. The practical effect of S. 625 is to substantially weaken existing State law. In fact, even 18 U.S.C. section 245, the current Federal law that specifically addresses hate crimes, provides for the death penalty. It is truly ironic that S. 625's failure to provide for the death penalty actually represents a decided benefit to those who would commit these heinous crimes, and it takes away some of law enforcement's most important pretrial bargaining techniques in order to get one or more witnesses to these crimes to testify or one or more participants to testify against the others. Not only would this legislation undermine existing State laws, but it would substantially weaken their protections and weaken law enforcement's ability to get to the bottom of some of these crimes. In consequence, this legislation would be less likely to deter future hate crimes as well as many State laws on the books today. If we as an institution are serious about addressing the problem of hate crimes, then we must permit for the possibility of the death penalty as being the appropriate punishment in some of these cases. If we are to take these sorts of cases away from State and local law enforcement officials who have been doing such a thorough and effective job prosecuting them with the possibility of the death penalty, then our Federal prosecutions must be equally well equipped and prepared to do as good a job as State and local officials have done. That is why it would only make sense to support my amendment to provide for the possibility of the death penalty in appropriate cases if you support the underlying bill. I noticed the distinguished Senator from Oregon is here, and I yield the floor.

Mr. HATCH. Mr. President, let me begin on a point of common ground. We can--each and every one of us--agree that the actions constituting hate crimes are wrong in all respects. Let me state, unequivocally, that as much as we condemn all crimes, a hate crime can be more sinister than a non-hate crime. And let me state, with equal conviction and clarity, that I care about stamping out hate crimes as much as any member of this body. I think everybody know that. A crime committed not just to harm an individual, but in order to send a message of hatred to an entire community is appropriately punished more harshly, or in a different manner, than other crimes. This is especially true when the targeted community is defined on the basis of immutable traits. The brutal murders of James Byrd in Jasper, TX, and Matthew Shepard, in Laramie, WY, among others, remain seared into our Nation's conscience because of the savagery they suffered solely because of their attackers' irrational and hateful prejudice. The worse a criminal's motive, the worse the crime, and a unanimous Supreme Court recognized as much in upholding Wisconsin's sentencing enhancement for hate crimes. These same considerations also prompted the U.S. Sentencing Commission to establish a sentencing guideline that provides an enhanced sentence for a Federal defendant whose crime was motivated by hate. These decisions are ones we can all applaud. Not only are the offenses themselves worse, but hate crimes also are more likely to provoke retaliatory crimes. They inflict deep, lasting and distinct injuries--some of which never heal--on victims and their family members. They incite community unrest. And, at bottom, they are downright un-American. The melting pot of America is the most successful multiethnic, multiracial, and multfaith country in all of recorded history. We should keep our proud heritage of diversity in mind as we consider the atrocities routinely sanctioned in other countries committed against persons entirely on the basis of their racial, ethnic, or religious identity. So we all should be able to agree that the battle against hate crimes is and must be America's fight. And despite the often contentious partisan rhetoric surrounding the issue of Federal hate crimes legislation, there exists widespread agreement on these fundamental points: Hate crimes are insidiously harmful, they should be vigorously prosecuted, and the Federal Government has a role to play in reducing the incidence of these crimes in our Nation. The dispute, then, centers not on whether Congress should act in this area, but rather on what should be done at the national level. There is no dispute that hate crimes themselves often involve particularly horrific facts. They rivet our attention and move us to consider almost any measure that would appear to check such bigotry. But the proposed legislation introduced by my good friend from Massachusetts, S. 625, also brings us face to face with the foundations of our constitutional structure--namely, bedrock principles of Federalism that, for more than 2 centuries, have vested States with the primary responsibility for prosecuting violent crimes committed within their boundaries. And on this point we must be crystal clear: every hate crime--every bit of criminal conduct that S. 625 proposes to federalize--is, and always has been, a crime in every jurisdiction throughout our Nation. The question is not whether these crimes can be prosecuted, but who should prosecute them under our constitutional framework. In other words, S. 625 brings us to a difficult intersection between our well-intentioned desire to investigate, prosecute, and, hopefully, end these vicious crimes, and our unequivocal duty to respect the constitutional boundaries governing any legislative action that we take. We, who are trusted with the awesome responsibility of making our Nation's laws, must scrupulously abide by the rule of law in this process. Congress has a duty to make sure that the legislation it enacts is constitutional. To shrug off that duty is more than just negligent; it invites trouble and may even solicit scorn. A Supreme Court Justice for whom I have the greatest respect, Justice Scalia, said the following just a few years ago: My court is fond of saying that acts of Congress come to the court with a presumption of constitutionality. But if Congress is going to take the attitude that it will do anything it can get away with, and let the Supreme Court worry about the Constitution, perhaps the presumption is unwarranted. So, while all of us would agree that hate crimes are a problem with which Congress must deal, our focus must be on the appropriate and constitutional means to best accomplish that objective. In the face of some of the recent hate crimes that have riveted public attention--and have unfortunately made the name James Byrd synonymous with Jasper, TX; and the name Matthew Shepard synonymous with Laramie, WY--I am committed in my view that the Senate must speak out and act against hate crimes. I have long been on record with my view that the Federal Government can play a valuable role in responding to hate crime. In fact, I sponsored the Hate Crime Statistics Act of 1990. But any Federal response--to be a meaningful and lasting one--must abide by the constitutional limitations imposed on Congress, and be cognizant of the limitations on Congress's enumerated powers that are routinely enforced by the courts. I was a prime sponsor of that bill, and I am proud that I was. It was a bill with a lot of controversy at the time. This is more true today than it would have been even a mere decade ago--ever since the U.S. Supreme Court revisited the Federalism doctrine in a string of decisions beginning in 1992. Having consistently checked the expansion of Federal jurisdiction in areas traditionally reserved to the States over the past decade, the Supreme Court has cast grave doubt over the legitimacy of S. 625. I am not alone in believing that this bill, if passed into law, will be struck down as an unconstitutional invasion into States' rights. I take no pleasure in holding this view. In fact, I was the primary co-sponsor of the Violence Against Women Act of 1994--a law that created Federal jurisdiction over certain serious acts of violence directed at women. Senator Biden was a prime sponsor as well and deserves an awful lot of the credit for that particular bill. I felt strongly about that legislation, and I certainly was not happy to see the Supreme Court strike down a portion of that law as unconstitutional. But I respect, as we all must, the Supreme Court's ruling, and we have a duty to take its lesson to heart--whether or not we personally like them. So there is a serious constitutional concern with S. 625. But, in the frightening climate of terrorism that we live in today, there is a practical consideration that we also cannot ignore. We must ask ourselves what role our Federal law enforcement agencies should play in violent crimes that historically have been prosecuted by State and local officials. The Federal Bureau of Investigation recently has committed a large number of its agents to work exclusively on terrorism cases. The FBI has shifted its focus away from the investigation of general crimes to the protection of our homeland security. In my view, this is a step in the right direction. I sincerely hope that everybody in this body, and both bodies, can all agree about that. Now, more than ever, we can see the line between what is truly national and what is truly local. The question is not just what can we do, but rather, how should we allocate our scarce Federal resources? And what message will we be sending the FBI--who has committed to focus on terrorism--by passing, as historians will no doubt conclude, the greatest expansion of Federal power over crimes traditionally prosecuted by State and local governments? I have given a great deal of personal thought to this matter in attempting to create a Federal response to hate crimes that would be as effective as possible without implicating the very serious concerns created by S. 625. The amendment I intend to propose before this matter is over is one that I believe would not only solve the problem effectively and pragmatically, but also has the virtue of resting on unquestionably sound constitutional ground. I care deeply about this issue and am committed to a strong, workable, practical, and constitutional Federal solution. It is precisely because of my commitment to this issue that--in the 2 years since this issue last came to the Senate--I have changed certain aspects of my amendment to strengthen the Federal Government's role in the investigation and prosecution of hate crimes. So, while S. 625 remains in precisely the same form as it was when it was offered as an amendment to the Department of Defense appropriations bill in June 2000--despite the concerns that were raised about its scope and constitutionality--I have worked to change my proposal to make it more aggressive and more acceptable to the supporters of S. 625. There are two main components to my amendment. First, I would propose creating a meaningful partnership between the Federal Government and the States in combating hate crimes. My amendment would permit the Justice Department to assist State and local authorities in investigating and prosecuting hate crimes by providing Federal manpower as well as financial assistance. The original version of my amendment had capped the amount of Federal grants at $100,000 per case, but the version I propose today removes that ceiling when the need is greater. My amendment contains a completely new provision that would require the Attorney General to designate one Federal prosecutor in every district to act as the Federal liaison for the State and local prosecutions of hate crimes. That Federal prosecutor, will take an active role in helping States prosecute hate crimes, from seeking Federal wiretaps to Federal search warrants. There simply is no reason to believe that State and local law enforcement officials could not prosecute these sorts of cases effectively with the type of Federal assistance that my amendment provides. My amendment directly remedies the primary concern of those who advocate broad Federal jurisdiction over hate crimes. Such a broad power grab is required, the argument goes, because State and local jurisdictions often lack adequate funding or resources to effectively prosecute hate crimes. While the record would seem to indicate that States have effectively shouldered the oar on prosecuting hate crimes, I certainly accept the fact that such highly publicized prosecutions might strain a smaller community's resources. My amendment directly cures that potential problem without displacing States from their traditional role in law enforcement. Let us not fail to note that the overwhelming successful record of local prosecutions of hate crimes--many in jurisdictions where the death penalty not only was available, but also played a central role in securing justice--should stand as a testament to the fact that wholesale Federal intervention is not warranted. There has never been a showing that State and local law enforcement officials have been ignoring or neglecting--much less intentionally failing--their duty to prosecute these heinous offenses. The truth seems quite to the contrary. State and local authorities effectively investigated and prosecuted those who perpetrated the reprehensible murders of Matthew Shepard and James Byrd, Jr. No Amount of federalization--much less the measures called for in S. 625--would have made these persecutions any more successful. This raises a point that I frankly find somewhat puzzling. During the last floor debates on this issue, Senators Kennedy, Durbin, my good friend, and Senator Reid from Nevada--good people who I know genuinely care about this issue--kept bringing up the tragic cases of Matthew Shepard and James Byrd as reasons to support S. 625. Yet those offenders were prosecuted efficiently and effectively and, in my view, appropriately with the death penalty, which was actually the sentence imposed on two of the killers of James Byrd. That is something that just couldn't happen under S. 625, which doesn't even provide for the possibility of the death penalty. So, if anything, the Matthew Shepard and James Byrd cases stand as testament to the fact that federalization of hate crimes is both unwarranted and in the case of S. 625, less effective than current state laws. In any event, before we take the decidedly broad step of making every criminal offense motivated by hatred a Federal crime, we ought to equip States and localities with the resources necessary so that they can undertake these criminal investigations and prosecutions on their own. The second major component of my amendment proposes to define the problem more precisely. Before we swing a broadsword into the constitutionally sensitive area of States' rights, we ought to consider carefully whether a scalpel might do the trick. There is a pile of raw data that has been collected pursuant to the 1990 Hate Crime Statistics Act, including a comparison of the records of different jurisdictions-- some with hate crime laws, others without. We need to undertake a comprehensive analysis of that data to determine whether there is, in fact, a problem in certain States' prosecution of hate crimes. Some 45 States and the District of Columbia already have enacted hate crimes laws, and by any measure, they are aggressively and effectively prosecuting these cases. I am certainly open to being persuaded that the States are failing to prosecute these crimes. But neither S. 625 nor the record developed in support of this legislation appear to make such a case. Analyzing the statistics that already exist to see whether there is a real, verifiable problem with state and local enforcement of hate crimes is a simple, efficient and responsible first step that we, as lawmakers, should take before enacting such sweeping legislation. In sum, we have widespread agreement that the Federal Government must play a role in our Nation's efforts against hate crimes. The role we define must also respect the Constitution and the structure of our government--a structure that, since the inception of our country, assigns to the States the primary role in criminal law enforcement. Rather than take a precipitous step that would potentially make every criminal offense motivated by a hatred a Federal offense, we should equip States and localities with the resources necessary to undertake these criminal investigations and prosecutions on their own. At the same time, we should undertake a comprehensive analysis of the raw data that has been collected pursuant to the 1990 act. My amendment is a measured legislative response that would accomplish the goal of letting no hate crime go unpunished--without bearing any risk of being struck down as unconstitutional by the Supreme Court. It is legislation that could and probably would pass into law. We know that S. 625, as written has no chance of enactment. The House will not take this amendments. It simply has too many problems. I hope it is not presented just for political reasons. Instead of having a political issue, we should take a realistic and responsible step toward addressing this problem, which would be passing my version of this legislation. Mr. President, as we know, on Friday, immediately after calling up S. 625, the hate crimes bill, the Democratic leadership filed for cloture. This was done for the sole reason of thwarting any meaningful debate on a bill that seeks to overhaul and expand thoroughly the role the Federal Government plays in law enforcement. I agree wholeheartedly that Senator Kennedy's bill, S. 625, is an important piece of legislation that deserves consideration in the Senate. In the past, I too have introduced competing legislation addressing hate crimes. As someone who has remained as involved in this issue as Senator Kennedy, at a minimum, I deserve the opportunity to offer amendments relevant to the discussion of hate crimes and to improve this bill. I believe my amendments will in fact improve this bill as it reads currently. Moreover, I believe that a majority of my colleagues not only want to consider these amendments, I believe they would approve of my amendments. Protecting the safety and rights of all Americans is of paramount concern to all Senators. There are, however, many thoughts as to how to provide this protection. No one is threatening to filibuster this bill. My colleagues and I are honestly trying to force a debate on an issue that affects all Americans. It is curious to me why the Democrats are trying to prevent a substantive debate on hate crimes from going forward. By preventing amendments from being offered and considered, the Democrats are shutting the door on any Republican ideas or alternatives, however constructive they may be. All Senators have the right to consider thoughtfully legislation that will impact significantly how serious crimes are prosecuted in this country. By filing for closure prematurely, the Democratic leadership is prohibiting Senators the right to debate and have a vote on issues that are important to them and the constituents of their States. It is unconscionable to prevent debate on such an important issue. I ask the Democratic leadership to rethink this position, and I ask Senators to oppose cloture and allow us to consider a reasonable amount of amendments to improve this bill. I will certainly make every effort to keep the amount of those amendments very limited so that this particular debate does not have to go on and on. I hope we will be able to get that done. I noticed S. 625 not only substantially expands current authority over hate crimes, it adds a number of provisions over what we had at least attempted to do before. Under current Federal law, it is important to note that it is unlawful to injure, intimidate, or interfere with any person because of his or her race, color, religion or national origin. That is the law today. That has been upheld as constitutional. If the person is participating in certain federally protected activities such as attending school, serving as a juror, traveling in interstate commerce, using public accommodations, or working, that person is protected against injury, intimidation, or interference because of race, color, religion or national origin. Since 1994, Federal law has required a heavier sentence for persons convicted of hate crimes. We have already gone a long way to do that. We will put in the Record before this debate is over some of the statistics that have been presented as to whether or not hate crimes, as defined narrowly, are really a significant percentage of crimes that are committed in this country. My attitude is, if one is committed, it is a significant percentage, but we have to be practical as well. It seems to me, since there is no showing--at least there has not been up to this date--that the State and local law enforcement jurisdictions are failing to prosecute hate crimes and prosecute them with vigor, it seems to me we are going too far with S. 625. I hope our colleagues will pay attention. I think we could really wind up not doing as much against hate crimes as we could if we would make a real effort to try to bring both bodies together. I would like to get this problem solved once and for all, and I would like to do it in a way the vast majority of us can support because I think the vast majority of Members of Congress will support a reasonably written, effective hate crime statute that does not take away the responsibilities of the State and local governments and law enforcement people to prosecute these matters. I yield the floor.

Mr. HATCH. Madam President, I call up amendment No. 3824 and ask for its immediate consideration.

Mr. HATCH. Madam President, 95 percent of all criminal activities are prosecuted by State and local law enforcement and are prosecuted well. That is the way it ought to be done. That is what is expected to be done. Our laws already cover virtually everything, from a civil rights standpoint, that I mentioned earlier today; that is, race, color, religion, and national origin. Do I think gay people ought to be attacked, brutalized, and mistreated? Heavens, no. I believe these matters have been taken care of at the State and local law enforcement levels. If they are not, they should be. We should do that. My amendment that I will offer provides the money, the facilities, and the ability for the State and local law enforcement people to do it if they need extra help. I do not think a case is made that we should give protective status to anyone other than for race, color, religion, or national origin, unless we can show that State and local law enforcement is not doing its job. If they are not doing the job, I am the first to support, the first to come out and say nobody should be mistreated. The law should cover everyone. I made the point, however, that under current law, the Matthew Shepard case and the James Byrd case--two of the most flagrant examples of vicious, unforgivable conduct--these cases were handled well by State and local law enforcement. And, because the prosecutors had the death penalty to hold over these defendants, these criminals, these vicious racists, they were able to force some of the witnesses to cooperate, which helped result in a conviction in one of the trials. In the case of Matthew Shepard, they obtained a guilty plea immediately, and thus, preserved judicial resources and saved taxpayers extensive amounts of money. The guilty plea was entered into to avoid the death penalty. Having that bargaining tool is a crucial part of law enforcement. This bill does not preserve this tool. That is one of the most glaring defects in this bill. There are no demonstrated problems with State and local enforcement of hate crimes. I am aware of only one time when hearings were held on this legislation. Those are the ones that I, as chairman, scheduled in 1999. Deputy Attorney General Eric Holder conceded in his testimony that an analysis of the hate crimes statistics that have been collected needs to be conducted to determine whether State and local authorities are failing to combat hate crimes. Eric Holder testified that the statistics we have are, to use his term, ``inadequate.'' In fact, there has been never been a showing that state and local law enforcement officials have been ignoring or neglecting--much less intentionally failing--their duty to prosecute these heinous offenses. Because we don't know the real facts on this critical issue, we have a duty to find out before we pass such sweeping, constitutionally suspect legislation. I have only learned of a handful of cases--less than a dozen, some of which stretch back almost two decades--where state and local officials are alleged to have failed to investigate or prosecute hate crimes. This is far from compelling evidence in a system of justice where, according to the most recent FBI statistics, citizens report some 11 million criminal complaints in one year, and state and local law enforcement officials make some 14 million criminal arrests. These numbers make another important point. State and local law enforcement officials process the overwhelming majority of all crimes-- some 95 percent of all criminal activity. There are good reasons for that. Frankly, they do every bit as good a job as Federal prosecutors. If we really want to do something about hate crimes, on a Federal level, we should at the least allow for the death penalty so law enforcement and prosecutors can obtain immediate cooperation and guilty pleas, and so defendants will have an incentive to testify against fellow perpetrators, which results in bringing these matters to an end quickly without high costs. In most cases, the death penalty would probably not be imposed, but the fact that it could be imposed is a very important element in getting to the bottom of a lot of these cases. We are talking about a very important set of issues. It is nice to be emotional; it is nice to talk about how big our hearts should be. I don't think anyone can claim they have a much larger heart than I have. I have proven it through all the years. The fact is, there is a reason our Founding Fathers wanted State and local law problems prosecuted by State and local prosecutors. They are the people closest to them; they are the people who understand the neighborhoods; they are the people who understand the cities; they are the people who understand the people. They do every bit as good a job as the Federal prosecutors do. I feel deeply about these matters. I don't want anyone to be hurt by hate crimes. It is not right. No one should care what their orientation is. It is just not right. I have to say, if the State and local law enforcement people were not doing their job, it would be another matter. My colleague, Senator Smith of Oregon, cited an incident in Idaho where the victim asked the FBI to step in and assist in the prosecution. They said they could not because there was no applicable federal statute. As I understand it, there is no allegation that the crime was not prosecuted by State officials. In fact, I understand they received a conviction in that case. A lot of this is based on emotions. I would like to address the issue from a law enforcement basis that makes sense, that really does the job. That is why I filed this amendment on the death penalty, because that is one of the great tools Federal and local prosecutors have. The very fact that they might have to face the death penalty if they roll the dice and go to the jury, it is one of the great tools that forces people to come clean. It is also a great tool in causing others to testify against their co-perpetrators. Take that tool away and I suggest we will be harming the efforts to try to solve the problems of hate crimes and criminal activity. What is wrong with this bill? It goes way beyond what is necessary and makes almost every case that is now prosecuted at the State and local level a Federal crime. The fact is that almost all crime involves hatred. I know the distinguished Senator from Massachusetts tried to prevent including every rape as a hate crime. But the bill is written so broadly that it looks to me as though they are making all rape cases, all cases with sexual allegations, hate crimes, prosecutable by the Federal Government, even though the State and local prosecutors are totally capable of prosecuting these cases. I suggest the absence of a quorum. Mr. SMITH of Oregon addressed the Chair.

Mr. HATCH. I appreciate the remarks of my distinguished friend about the way he feels about these matters. I feel precisely the way he does. We are very close friends. I don't think you can find closer friends in the Senate. I think most people who know me know that I have very deep feelings that no one should be brutalized in our society, regardless of what their sexual orientation is. But this is a big step. If we take this bill without the death penalty, then we are actually reducing the ability of law enforcement to go after these people and to get cooperation from other witnesses and from co-perpetrators. One of my favorite programs on television happens to be ``Law and Order.'' If you watch that, you will see the prosecutors regularly use the death penalty as a tool. While fictional, this television show is based substantially on what goes on in real life. Most attorneys who watch the show are pretty impressed with the program. I am one of them. You will notice in many cases that they will use the potential of being subjected to the death penalty to get one or more of the perpetrators to testify against the others. Frankly, it is very effective on this show and in real life. I, for one, believe that the death penalty should be used only in the most narrow of circumstances. But I believe it is a tool that would certainly help in prosecuting hate crimes. It would certainly help almost every prosecutor who wants to go after violent criminals who act in concert. It certainly helps our State and local prosecutors, and it would help the Federal prosecutors. But in this particular bill that has been introduced by my distinguished friend from Massachusetts, the death penalty is taken out of the hands of Federal prosecutors. So all we are doing in this intellectual, political exercise, in many respects, is tying the hands of Federal prosecutors, while immensely expanding the Federal jurisdiction over virtually all crimes that are called ``hate'' crimes--in complete disregard for the fact that 95 percent of all prosecutions are prosecuted at the State and local level, and are prosecuted well. I know the distinguished Senator from Oregon cited the Bangerter case. The people who attacked Bangerter and hurt him were prosecuted and convicted, as I understand. There are bound to be maybe four or five cases over the last decades that weren't prosecuted. But that doesn't justify giving this wholesale expansion of state authority to the Federal prosecutors. One of the things I personally chatted about with the current Chief Justice and other Justices on the Court--one of the things I personally discussed with them--is their concern about the continual increase of the number of statutory Federal crimes when there is no evidence that the State and local prosecutors are not doing their job. The amendment I intend to file at a later time, which will be a substitute for the bill of the distinguished Senator from Massachusetts, provides for the tools and the help for those small communities, such as the one in Colorado that distinguished Senator from Oregon referred, to prosecute these crimes. Although there is no evidence that they can't do it or that they aren't doing it, my amendment makes sure that hate crimes will and can be prosecuted by providing resources. If my friend from Oregon is truly only concerned with enhancing local law enforcement--this bill, ironically, is called the Local Law Enforcement Enhancement Act. This bill takes away the authority of local law enforcement and puts it in the hands of Federal prosecutors when there is no evidence they need to do that. Nor is there any indication that we should turn over this kind of responsibility to Federal prosecutors, nor that they should have the right to come in and overrule local prosecutors in the process who are doing the job. If my colleague from Oregon is truly only concerned with enhancement of local law enforcement, I hope he will vote for my substitute which will be offered later in this debate. That is what my substitute will do--enhance and not supplant local State prosecutors. I will discuss that in detail later, and hopefully we will be able to bring it up and get a time agreement whereby we have a limited number of amendments. And that will certainly be one of them. If we win, we win. If we lose, we lose. But at least we will have debated it, and we will have had a chance to improve this bill by leaps and bounds. During our last debate on hate crimes, Senator Kennedy criticized me for arguing against the federalization of hate crimes when I have supported providing Federal jurisdiction in other, completely unrelated areas, such as computer fraud or class actions. This is the classic apples versus oranges argument. In those other cases, there has never been any serious question that the proposed Federal jurisdiction would be constitutional. I consider every piece of legislation on its own merits. The distinguished Senator from Massachusetts, a noted opponent of the death penalty, nonetheless has voted in the past for legislation that provides for the death penalty. My conviction that S. 625 is unconstitutional is in no way inconsistent or contradictory. Whether or not a State may have a specific law prohibiting hate crimes does not mean that they are failing to vigorously prosecute them. Every hate crime, every bit of criminal conduct that S. 625 proposes to federalize is and always has been a crime in every jurisdiction throughout our Nation, crimes which have been effectively prosecuted by State and local prosecutors. When we challenged the Clinton administration and the then Deputy Attorney General, Eric Holder, to come up with any examples where local prosecutors were not taking care of these problems, they could not do it. In fact, prosecutors sometimes do not like to charge a crime as a hate crime--especially when the penalties are no different because they have to prove an extra element: The motive of the defendant to commit the crime based on bias. That is an extra element that would have to be proven, and it makes it tough to get convictions in some of these cases. It is no answer to say that a State may not have a hate crime or may not be charging enough cases under a specific hate crime law. The real question is, Are States failing to prosecute hate crimes? The answer is a resounding no. I suggest the absence of a quorum.

Mr. HATCH. Yes.

Mr. HATCH

Mr. HATCH. Madam President, I object.

Mr. HATCH

Mr. HATCH. Mr. President, I ask unanimous consent that Senate amendment No. 3759 relating to resources for the Food and Drug Administration be recalled.

Mr. HATCH. Mr. President, for many years now, it has been abundantly clear to many of us that one of the most important Federal agencies, the Food and Drug Administration, FDA, is woefully underfunded. It was for that reason that I reluctantly agreed to pharmaceutical user fees in 1992, even though I preferred that safety and efficacy review of new drugs remain a government function. Integrally related to the operations of the FDA are the agency's facility needs. Studies dating back to 1976 have cited serious deficiencies in FDA's facilities. For example, one 1976 FDA study found that the condition of agency laboratories at five of nine locations were ``unacceptable.'' Another two labs were found to be ``marginal,'' and the remaining two were cited as ``generally suitable'' with some marginal deficiencies. Many of these deficiencies remain today. As long ago as 1988, the Labor and Human Resources Committee recognized this fact by approving legislation I authored, S. 2468, the Food and Drug Administration Revitalization Act. Enacted in 1990 as Public Law 101-635, this law improved FDA's resources in a number of areas, including, most importantly, granting the Secretary and the General Services Administration enhanced authority to modernize and improve FDA's real property needs. I still recall the motivation for that legislation as if it were today, the shocking reports we read about FDA facilities being scattered across far-flung locations. I remember hearing of renowned scientists literally working in converted chicken coops. More recently, in 1996, one FDA official testified before that Congress that FDA was scattered in more than 40 buildings, many with outdated and unacceptable laboratories, in more than 18 different locations. For an agency that is responsible for one-quarter of every consumer dollar, for an agency that makes decisions that are literally life and death, that was--and is--simply unacceptable. A number of us, including Senator Mikulski and Senator Kennedy, and on the House side, Representative Connie Morella, have been working to accomplish a consolidation of the FDA headquarters in one location. It is our belief that this enhanced, state-of-the-art facility will enable the agency to operate more efficiently. In short, we will be enabling agency personnel to do the job that the American people expect of them. Through the Base Realignment and Closure Act process, the Naval Surface Warfare Center in White Oak, Maryland, was transferred to the General Services Administration (GSA). This property will be used pursuant to the FDA Revitalization Act to consolidate new laboratories, office buildings, and support facilities of FDA's most important functions: the Office of the Commissioner; the Office of Regulatory Affairs; the Center for Drug Evaluation and Research; the Center for Devices and Radiological Health; and the Center for Biologics Evaluation and Research. If there were a dietary supplement center, I feel certain it would go there as well. I was encouraged to learn that, under the most recent plan, 6,235 headquarters personnel would be located in over 2.3 million square feet of office and laboratory space. Unfortunately, though, our history of financial support for the consolidation is not as promising. For example, by 1994, a total of $325 million had been provided for the project, but $228 million of that was rescinded in FY 1995 based on concerns about the scope of the project as well as its location. The current budget only proposes $5.5 million for FY 2003, delaying the project by an estimated year and resulting in almost $23 million in increased costs due to commercial lease extensions, delays in design and construction, and the impact on management and inspection of the project. This delay would have the most adverse effect on the Center for Devices and Radiological Health, CDRH, which occupies seven leased buildings in Rockville. Efficient operations of CDRH are critically important for my home state of Utah, which is proud to be the home base for literally dozens of thriving medical device manufacturers. They need to be able to count on FDA to maintain its gold standard review of devices to assure the public of their safety and efficacy. This is increasingly hard for FDA personnel to do, given that one of the two device labs is about 40 years old and in need of considerable attention. In fact, I am advised by the GSA that this CDRH lab is in ``extensive disrepair''. The ventilation system is old and at risk of failure, and the owner has blocked even temporary repairs. The unfortunate events of September 11 have made this consolidation even more crucial. Many FDA facilities are currently leased and physical security varies by building. The new complex will improve security dramatically, both for current employees, and for the 128 additional headquarters personnel funded by the counter-terrorism appropriation. In short, I remain discouraged by our lack of progress on this project over the last 15 years or so. I recognize that resources are constrained, but providing the FDA with necessary resources to assure public health and safety is a very important government function that needs to be funded. In an effort to provide new funds for this project, and to reassure the thousands of FDA employees that we are behind them and their important work, earlier this week Senators Mikulski, Kennedy and I proposed that the record $500 million settlement resolving quality- control problems at four Schering-Plough factories be devoted to the FDA consolidated headquarters. We believe it is entirely fitting that this pharmaceutical money be used to improve the operations of the FDA, rather than being dispersed into the general receipts of the Treasury. Unfortunately, it now appears that a budget point of order would be lodged against our amendment, despite its important purpose. Therefore, deferring to the guidance of our colleagues on the Appropriations Committee, and recognizing the administration's serious concerns about the overall costs of the bill, I am reluctantly recalling this amendment. However, I am encouraged that the subcommittee chairman and ranking Republican member have indicated their willingness to work with us during formulation of the FY 2003 Treasury-Postal bill, and we intend to work closely with them to provide this necessary funding in the weeks to come.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to introduce legislation that will help one of the most vulnerable segments of the Medicare population; the Medicare Improvements for Special Needs Beneficiaries Act of 2002 will improve access to quality health care for frail, elderly Medicare beneficiaries living in nursing homes or the community. Approximately six million of these individuals are eligible for both Medicare and Medicaid coverage. These ``dual eligibles,'' as they are called, are the most vulnerable group of Medicare beneficiaries. They are elderly or disabled and poor, and many have serious health risks and complex medical, social, and long-term care needs. Care for these beneficiaries is fragmented, and many face barriers to needed services. Dual eligibles represent a disproportionate share of Medicare spending. A small number of health plans specialized in providing quality coordinated care to frail elderly Medicare beneficiaries through demonstrations and the Medicare+Choice program. These specialized plans are a Medicare+Choice success story, fulfilling the program's original goals by employing innovative clinical models of care that improve care and health outcomes while reducing medical costs. These plans currently serve approximately 25,000 Medicare beneficiaries, most of whom reside in nursing homes. The model is simple: teams of physicians and nurse practitioners work together to provide as much primary, preventive, and acute care as possible on site, in a nursing home facility or in the patient's home. For institutionalized enrollees, this means fewer trips to the emergency room; for community-based enrollees, it means avoiding nursing home placement. If enrollees can be treated successfully without a trip to the hospital or placement in a nursing home, they remain healthier and costs to the Medicare program are reduced. These specialized plans are currently facing regulatory barriers that prevent them from becoming permanent Medicare+Choice program options and expanding service to frail and elderly beneficiaries in the community. The Medicare Improvements for Special Needs Beneficaries Act of 2002 provides improved beneficiary access to Medicare+Choice plans by removing these barriers and allowing plans to specialize in serving dual eligible, institutionalized, and other frail beneficiaries. Specially, the bill would allow a special Medicare+Choice program designation in order to allow these plans to target enrollment to the frail elderly and concentrate care on this vulnerable population. As a safeguard, our bill also includes several quality assurance and reporting requirements which these plans must adhere to in order to remain in the program. The Congress is continually trying to improve our nation's health care system and improve service for Medicare beneficiaries. I believe this legislation takes a small step toward this goal. These programs are fulfilling the original promise of the Medicare+Choice program to improve quality and lower costs, and this legislation is a no-cost way to continue this effort. These plans serve a unique and valuable purpose for a very vulnerable segment of our society. I hope my colleagues will join me in supporting this important legislation.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to introduce legislation that will help one of the most vulnerable segments of the Medicare population; the Medicare Improvements for Special Needs Beneficiaries Act of 2002 will improve access to quality health care for frail, elderly Medicare beneficiaries living in nursing homes or the community. Approximately six million of these individuals are eligible for both Medicare and Medicaid coverage. These ``dual eligibles,'' as they are called, are the most vulnerable group of Medicare beneficiaries. They are elderly or disabled and poor, and many have serious health risks and complex medical, social, and long-term care needs. Care for these beneficiaries is fragmented, and many face barriers to needed services. Dual eligibles represent a disproportionate share of Medicare spending. A small number of health plans specialized in providing quality coordinated care to frail elderly Medicare beneficiaries through demonstrations and the Medicare+Choice program. These specialized plans are a Medicare+Choice success story, fulfilling the program's original goals by employing innovative clinical models of care that improve care and health outcomes while reducing medical costs. These plans currently serve approximately 25,000 Medicare beneficiaries, most of whom reside in nursing homes. The model is simple: teams of physicians and nurse practitioners work together to provide as much primary, preventive, and acute care as possible on site, in a nursing home facility or in the patient's home. For institutionalized enrollees, this means fewer trips to the emergency room; for community-based enrollees, it means avoiding nursing home placement. If enrollees can be treated successfully without a trip to the hospital or placement in a nursing home, they remain healthier and costs to the Medicare program are reduced. These specialized plans are currently facing regulatory barriers that prevent them from becoming permanent Medicare+Choice program options and expanding service to frail and elderly beneficiaries in the community. The Medicare Improvements for Special Needs Beneficaries Act of 2002 provides improved beneficiary access to Medicare+Choice plans by removing these barriers and allowing plans to specialize in serving dual eligible, institutionalized, and other frail beneficiaries. Specially, the bill would allow a special Medicare+Choice program designation in order to allow these plans to target enrollment to the frail elderly and concentrate care on this vulnerable population. As a safeguard, our bill also includes several quality assurance and reporting requirements which these plans must adhere to in order to remain in the program. The Congress is continually trying to improve our nation's health care system and improve service for Medicare beneficiaries. I believe this legislation takes a small step toward this goal. These programs are fulfilling the original promise of the Medicare+Choice program to improve quality and lower costs, and this legislation is a no-cost way to continue this effort. These plans serve a unique and valuable purpose for a very vulnerable segment of our society. I hope my colleagues will join me in supporting this important legislation.

Mr. HATCH

Mr. HATCH. Mr. President, I rise to discuss the recent enactment of H.R. 2646, the Farm Security and Rural Investment Act of 2002, and to explain why I made the very difficult decision to vote against it. First, I wish to express my sincere thanks to the members of the House and Senate Agriculture Committees and the conferees for their very hard work in producing this farm bill. I have no doubt that their aim was the good of America's farmers and of rural America. There are a number of important provisions in the farm bill that will have a positive impact on our family farms. I am pleased that significantly more funds will go to conservation programs and to help livestock producers and feedlot operators to better protect the environment. I am especially proud of language included in the farm bill that will restore a modest and carefully constructed wool program for our sheep industry. The new wool payment is crafted to provide some assistance during difficult times but not so much that the wool market will become distorted. I think the wool payment program is a good model for providing farmers with a good safety net. I wish I could say that the other crop support programs in H.R. 2646 were also well-crafted, but I cannot. I was a strong supporter of the previous farm bill, or the Fair Act. The Fair Act attempted to free our farmers from the heavy hand of government and restore to our farmers the benefits of the free market. While I supported the Fair Act, I also recognized that the safety net for our farmers still needed some strengthening. A farm safety net should help farmers succeed in the free market. The alternative is to protect our farmers from the free market, and we have learned from failed farm programs of the past that there is not a good way to do that. It is unfortunate that our new farm bill appears to be heading back down those same paths. Its greatest weakness is that in an attempt to provide some protection for farmers it goes well beyond the mark. We needed a fresh approach to supporting our farmers, but this latest farm bill is an unpleasant trip down memory lane. It risks turning our farmers into welfare recipients, and it puts the bureaucrat back in the business of running our nation's farms. In H.R. 2646, the programs for row crops are intended to kick in when there is an oversupply and prices are low. Basic economic principles would indicate, and history has proven, that these counter cyclical programs themselves can create an incentive for overproduction which, in turn, keeps prices low. Unless they are crafted very carefully, counter cyclical programs lead to a spiral of dependency. As long as the government money keeps flowing to the farmers, the overproduction does not bankrupt them. But it does put our farmers on the federal dole, and I don't believe that's where the farmers of Utah want to be. One of the greatest benefits our government can provide to our farmers is a world system of free and fair trade. Our Nation's farm products are the best, and consumers around the world are clamoring for them. Through tremendous effort and lengthy negotiations, this and past administrations have been prying open foreign markets to U.S. agricultural products. I believe that too many of the programs in H.R. 2646 go beyond support for farmers and instead attempt to protect them from competition. The governments of our largest foreign markets for agriculture products are keenly aware of this, and with some justification they are alarmed by our recent shift toward protectionism. I fear the effects of this shift will hurt farmers. Doors to foreign markets that have been opened to our farmers may now close, the possibility for new markets may be quashed, and a greater number of future agricultural trade issues will be decided by the World Trade Organization, not by our trade negotiators. Another important consideration for me in deciding to oppose H.R. 2646, was the alarming escalation of the cost of the bill. My understanding was that it would take about $100 billion to keep the current programs running for our farmers. On top of that, we budgeted an additional $73.5 billion to help meet the needs of our farmers. That is a big increase, but I think our farmers deserve the additional help. I would feel better about spending this extra money, though, if I believed that it would benefit our agricultural industry rather than work against it. I would also feel better about the extra spending if the original $173.5 billion had not mysteriously risen to a budget busting $190 billion. I know the farmers of Utah. They are prudent businessmen who simply want a fair shake. They do not want to go on the government dole, they do not want to close foreign markets, and they do not want to add to our budget deficit. Unfortunately for the farmers of Utah, the farm bill that has recently been signed into law does all of the above. And yet, all this money and all these programs do strangely little for the small farmer of Utah. A full two-thirds of all these programs will go to only 10 percent of our nation's largest farms. This is a particularly grotesque and embarrassing aspect of H.R. 2646. If these largest farms are so efficient, why do they need this level of welfare? Where are the economies of scale that should make the largest farms the strongest? I voted on the floor of the Senate, along with 65 of my colleagues, to address this issue by providing certain limitations on the size of payments the largest farms could receive under this farm bill. Although two-thirds of the Senate agreed on these payment limitations, the final conference report came back to us stripped of this important provision. I wish we had a farm bill to which I could have given my blessing, but frankly, H.R. 2646 did not deserve my blessing. I am pleased that Utah's woolgrowers will receive some much needed relief, that our livestock producers in general will receive important funding for conservation measures, and that our crop growers will gain some certainty from the enactment of a farm bill, but I fear there may be a heavy price to pay in the long run for our agricultural industry--a price that could have been avoided with a little more prudence and restraint on the part of the legislators and the farm organizations who helped to develop this farm bill. I hope that Utah's farmers can understand why I needed to vote against this farm bill. I cherish the farmers of Utah. I consider them the finest citizens our nation has. There is no group that works harder, that is more patriotic, or that is more morally strong than the farmers of Utah. I have often stated that they are the backbone of our society, and I have always believed it to be true. I will continue to do all I can to support our farmers in the way that I believe they want to be supported, and I think my record reflects that this is what I have attempted to do over the years. I believe that the farmers I represent understand this.

Mr. HATCH

Mr. HATCH. Mr. President, as the loya jirga process moves forward in Afghanistan, all of us must realize that U.S. security depends on a political solution in that far-away country that truly creates functioning stability there. All of us know what the costs of an unstable Afghanistan have been--those costs were delivered to us on September 11. A political solution in Afghanistan, in my opinion, cannot rely solely on the Northern Alliance leaders who control many aspects of the government today. While we have had numerous military successes in Afghanistan, we must be as serious about our commitment to a truly multi-ethnic political resolution to the country's current ingovernability. Last week, Dr. Marin Strmecki, a scholar on Afghanistan for the past 20 years, a fine intellectual who served on my staff many years ago, wrote an excellent analysis in the National Review. I have much respect for Dr. Strmecki's analysis and would urge my colleagues to read it. I ask unanimous consent that this article be printed in the Record.

Mr. HATCH

Mr. HATCH. Mr. President, every decent American joins with me in seeking to rid our country of child pornography. Unfortunately, the growth of technology and the rise of the internet have flooded our nation with it. Child pornography is inherently repulsive, but even more damaging are the purposes for which it routinely is used. Perverts and pedophiles not only use child pornography to whet their sick desires, but also to lure our defenseless children into unspeakable acts of sexual exploitation. There is no place for child pornography even in our free society. Mr. President, I have long championed legislation designed to punish those who produce, peddle or possess this reprehensible material. As I stated in introducing the Child Pornography Prevention Act of 1996 (``CPPA''), we have both the constitutional right and moral obligation to protect our children from the horrors of child pornography. I remain fully committed to these principles today. We were disappointed some weeks ago, when a majority of the Supreme Court struck down some key provisions of the CPPA under the first amendment. While I firmly respect the Supreme Court's role in interpreting the Constitution, the decision left some gaping holes in our nation's ability to prosecute child pornography effectively. We must now act quickly to repair our child pornography laws to provide for effective law enforcement in a manner that accords with the Court's ruling. Mr. President, the legislation I introduce today strikes a necessary balance between the first amendment and our nation's critically important interest in protecting children. This Act does many things to aid the prosecution of child pornography, and I highlight some of its most significant provisions here. First, the act plugs the loophole that exists today where child pornographers can escape prosecution by claiming that their sexually explicit material did not actually involve real children. Technology has advanced so far that even experts often cannot say with absolute certainty that an image is real or a ``virtual'' computer creation. If our criminal laws fail to take account of such advances in technology, they become completely worthless. For this reason, the act permits a prosecution to proceed when the child pornography includes persons who appear virtually indistinguishable from actual minors. And even when this occurs, the accused is afforded a complete affirmative defense by showing that the child pornography did not involve a minor. Second, the act prohibits the pandering or solicitation of anything represented to be obscene child pornography. The Supreme Court has ruled that this type of conduct does not constitute protected speech. Congress, moreover, should severely punish those who would try to profit or satisfy their depraved desires by dealing in such filth. Third, the act prohibits any depictions of minors, or apparent minors, in actual--not simulated--acts of bestiality, sadistic or masochistic abuse, or sexual intercourse, when such depictions lack literary, artistic, political or scientific value. This type of hardcore sexually explicit material merits our highest form of disdain and disgust and is something that our society ought to try hard to eradicate. Nor does the first amendment bar us from banning the depictions of children actually engaging in the most explicit and disturbing forms of sexual activity. Fourth, the act beefs up existing record keeping requirements for those who chose to produce sexually explicit materials. These record keeping requirements are unobjectionable since they do not ban anything. Rather, the act simply requires such producers to keep records confirming that no actual minors were involved in the making of the sexually explicit materials. In light of the difficulty experts face in determining an actor's true age and identity just by viewing the material itself, increasing the criminal penalties for failing to maintain these records are vital to ensuring that only adults appear in such productions. Finally, the act creates a new civil action for those aggrieved by the depraved acts of those who violate our child pornography laws. Mr. President, this is one area of the law where society as a whole can benefit from more vigorous enforcement, both on the criminal and civil fronts. Mr. President, we will not need to wait long before those who deal in child pornography will take advantage of the Supreme Court's decision. Congress can and should act, promptly and decisively, to close any gaps in current law to protect our children from the immeasurable harms posed by child pornography. I strongly urge my colleagues to join with me in promptly passing this important legislation. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. HATCH

Mr. HATCH. Madam President, I also agree that the distinguished Senator would make an excellent actor. In fact, I am going to talk to our mutual friends at DreamWorks to make sure they extend an offer to him because I believe he could do much better than he is doing on the floor today. Secondly, on the Constitution, we are going through this exercise because we control this process. The Finance Committee, 18 to 3, said we should have a process that works, and it should be a nonpartisan process that works. We have come very close to having a very partisan process as it is. We cannot take any more of these kinds of amendments and have a process that will work at all in the best interest of our country. I am, of course, kidding my partner. I have a lot of respect for him. He is clearly a very intelligent and very articulate spokesperson for his point of view. But the fact is, it is not easy to get 18 votes in the Finance Committee on most issues. Our chairman has done a terrific job. So has our ranking member. We need to back them. We need to back our U.S. Trade Representative. He is a terrific human being, and he works very hard, as did his predecessors in the prior administration. I supported them. This bill is an extremely important bill for our country, and I believe in the end it is an important bill for the world. We know our role in the world. We know we have to play that role, and we have to help many countries throughout the world. I think it is a little ironic that some would suggest our country would not do what is right for the rest of the world, even though we cannot do everything the rest of the world wants, nor can we always please our friends in Europe or anybody else for that matter. But this bill will help us. This bill will help strengthen our economy. This bill will help every worker in America. This bill helps people who are not able to work right now. I have said we have to have both TPA and TAA. I said it in committee. I want to compliment our leaders on the Finance Committee and our leaders on the floor. They have done a terrific job and they deserve backing. We ought to defeat this amendment. I yield the floor.

Mr. HATCH. Mr. President, I yield some time to myself.

Mr. HATCH. Mr. President, I rise to speak in opposition to the amendment offered by my friend from Illinois, Mr. Durbin. Before I discuss the specifies of the Durbin amendment, I feel compelled to comment upon some of the dynamics of the trade bill. First, we reported the trade promotion authority bill out of the Finance Committee by a broad bipartisan 18-to-3 vote. There is strong bipartisan support for trade. I was the one, I believe, who called for the vote. I believe this vote was in accordance with the tradition of the Finance Committee in doing what is right for the American people. I am afraid that from the moment this bill hit the floor this emerging spirit of bipartisan consensus on trade has been jeopardized. Throughout, the committees, work this Congress, I stated my view that both trade promotion authority and trade adjustment assistance legislation must be passed or neither would be adopted. I still believe that is the case. Frankly, the compromise that was reached on TAA last week was at the very limit of what many of us on our side of the aisle could stomach. I have many reservations about the health care policies embraced by the compromise and the overall cost of the program. I think it is going to louse up the health care system of this country, and it is unfair to those workers who do not have health care, who have to pay for those who do not work so they can have health care. That is just one comment about it. As everybody knows, I worked very hard in the area of health care, and I really think we have made some big mistakes on some of the provisions we are going to accept in this bill. As I understand it, the final deal on TAA was at a cost that is very close to what Republican members of the Finance Committee opposed last fall. And then yesterday, the Senate accepted the Dayton-Craig amendment, which stands in violation to the very principle of TPA--a simple up or down vote on each trade agreement that USTR negotiates. The Dayton-Craig amendment, if signed into law, will establish a new set of rules with respect to agreements that purport to impinge upon U.S. trade remedy laws. Talk about opening a Pandora's box, that us what Dayton-Craig does. If you don't like the way a particular trade agreement affects the trade remedy laws, vote it down. USTR will quickly get the message. TPA is known is fast track for a good reason; let's not adopt amendments that act to slow down TPA. I have no doubt that President Bush, Secretary Evans, and Ambassador Zoellick will not undermine our trade protection laws. We saw that the administration did with steel and is doing on softwood lumber. I have had something to do with that. I stood up on the steel matter, lining up with my colleagues on the other side, especially Senator Rockfeller. This administration took a pretty tough position and has been criticized, especially in Europe, for having done so. There is good reason to have confidence in the administration and every reason to fear that enactment of Dayton-Craig would encourage some of our trading partners to attempt to wall off areas of the law that will be deemed near and dear to them. I hope that other nations will not try to relax their intellectual property laws or enforcement of these laws or enforcement of these laws as high technology represents an important area for U.S. interests and for the world at large. We are talking about software, information technology, entertainment, and biotechnology, all of which the whole world depends on. And we better protect it--in the sense of protecting the rights under these intellectual property laws. So I understand that we accepted Dayton-Craig, I am becoming fearful that the accumulated weight of the additions of the trade bill from the time it left the Finance Committee will bring down support for the bill. It is true that we passed a farm bill, but the loaded up version that we passed should not make us very happy. Let us not repeat that experience by passing a trade bill that tries to do too much for too many interests that are extrinsic to trade that, at the end of the day, it does not deserve our support. Comes now the Durbin amendment. I know Senator Durbin. He is a good man and has nothing but the best of intentions. I personally appreciate his help in funding the generic drug interests lost year. He did a good job. But, if enacted, the substitute would make it difficult or impossible to bring home the best trade deals for the United States. The substitute is so prescriptive it removes needed flexibility. It contains 70 pages of ``principal negotiating objectives.'' The effect of all this detail is to bind the administration's hands at the negotiating table and to telegraph a long list of U.S. ``bottom-lines'' to our negotiating partners--who will make us pay a heavy price. The substitute changes negotiating ``objectives'' into mandates. It gives 18 ``congressional advisers'' the right to withdraw TPA after an agreement is negotiated unless a majority considers that the trade agreement ``substantially achieves'' the substitute's principal negotiating objectives. That effectively makes the 70 pages of detailed negotiating objectives into requirements, setting an unrealistic and unobtainable standard for negotiations. The substitute adopts inconsistent approaches to negotiating objectives. For example, while the substitute says the United States should try to amend or clarify the GATT conservation exception, it says the United States should oppose opening the SPS Agreement, which is derived from the same set of GATT exceptions. The substitute will make it harder for the President to strike the best possible deals with our trading partners because it raises questions about whether the President will be negotiating on behalf of the United States as a whole. The substitute creates a biennial fast-track procedure for Congress to withdraw TPA for any reason after a negotiation has begun. That procedure--and the one allowing the congressional advisers to withdraw TPA if the administration has not ``substantially achieved'' the substitute's negotiating objectives--will lead our trading partners to question whether Congress and the President are united at the negotiating table. How could you make it tougher on the President and the U.S. Trade Representative? Instilling confidence is a major reason for enacting TPA. It means the President can push other governments to their ``bottom lines.'' The substitute bill would remove that confidence. The substitute is not drafted with an eye to what the United States can realistically achieve, or should try to secure, in trade negotiations. For example, the substitute says the administration should ``establish promptly a working group [in the WTO] on trade and labor issues.'' This is something that the overwhelming majority of WTO members adamantly oppose. There is no realistic hope of achieving it anytime soon. In sum, the proposed substitute is based on the flawed assumption that Congress can pre-negotiate our future trade agreements through highly detailed negotiating objectives, regardless of whether they are achievable, and the implied threat to withdraw TPA if those objectives are not met. That is a recipe for no agreements, rather than better agreements. To achieve the best results, the two branches need to work together. I have to say that I have been a supporter of the U.S. Trade Representative since I have been in the Senate. I supported President Clinton's U.S. Trade Representative. I was one of the people who cleared the way for some of the things she did--and others as well. But the fact is, I think we need to support this Trade Representative, someone as bright as anybody we have ever had in that position, and someone who understands the need to satisfy 535 Members of Congress. The Finance Committee got it right. The House got it right. I oppose the Durbin amendment and will oppose other efforts to load up this trade bill with so much unnecessary, although sometimes well- intentioned, baggage that the bill will fall of its own weight. That is the net effect of many of these amendments. The American labor force would have been better off if we had entered conference with the bill passed by the Finance Committee, rather than this ever growing extravaganza. This is important stuff. The Finance Committee is a great committee. Our two leaders on the committee have done a great job. I compliment Senator Baucus and Senator Grassley for the work they have done. They deserve our support. We ought to support them. We should not be undermining what they and 18 members of the committee did. It was a bipartisan bill if there ever was a bipartisan bill. All of us knew that we have to get together in order to do the constructive trade work that benefits our country. This amendment, unfortunately, undermines almost everything that we did in the committee and that the House has done. It is tough to get this kind of broad consensus in the Finance Committee on something that is very complex anyway, but we did. And I think that ought to be given greater consideration than we have thus far given it. I want to support my chairman. He has stood tall on this issue. And I look forward to working with him. I yield the floor.

Mr. HATCH. I thank the Chair. (The remarks of Mr. Hatch and Mr. Leahy pertaining to the introduction of S. 2520 are located in today's Record under ``Statements on Introduced Bills and Joint Resolutions.'')

Mr. HATCH

Mr. HATCH. I ask unanimous consent that Bruce Artim, a fellow from the Judiciary Committee, and Chris Campbell, on my staff, be granted the privilege of the floor for the remainder of the debate on the trade bill.

Mr. HATCH

Mr. HATCH. Mr. President, I rise to oppose the Dayton-Craig amendment. I have no doubt that the sponsors of the Dayton-Craig amendment have nothing but the best intentions. They believe that they are protecting the interests of the American public by walling off our Nation's trade remedy laws. Senators Dayton and Craig believe that the Congress should take a special look to determine whether a particular trade agreement undermines our trade remedy laws. These important protections include the anti-dumping and countervailing duty laws. I understand what my friends, Senators Dayton and Craig, are attempting to do with their amendment. But the trade promotion authority bill before us today already addresses their major concern-- the weakening of our domestic trade laws. The bill before us already gives clear direction to our U.S. negotiators to ``avoid agreements that lessen the effectiveness of domestic and international disciplines on unfair trade.'' This includes dumping, subsidies, and safeguards. Under the provisions of the Dayton-Craig amendment, a minority of this body could work to defeat future trade agreements. By raising a point of order objection, any one Senator could slow the chance for any future trade agreement and 41 Senators could effectively kill a global trade agreement signed by the President, passed by the House and supported by a majority in the Senate, for any reason--even one totally unrelated to trade laws--as long as the implementing bill contained any change, no matter how minor, to a U.S. trade law. If this amendment were to pass and become law, the United States' negotiating position would be severely weakened in any future trade talks. Our trading partners will view this amendment as a vulnerability--in essence, by passing this amendment we are outlining to our potential trading partners our greatest negotiating weakness. If we declare U.S. trade laws off limits, I must ask if this is really the best way to encourage other countries to bring their trade laws up to U.S. standards which, most would agree are the gold standard that all countries strive to meet? But sometimes you can't get here from there immediately, and you have to take intermediate steps along the way. While I believe that the United States has enacted and plays by a fair set of rule with respect to trade remedy laws, we should never send a signal to our neighbors that our laws cannot be improved and should not be the subject for discussion. I have absolute faith that the President, Secretary Evans, and Ambassador Zoellick would never do anything to fundamentally undercut our trade remedy laws. And what if I am wrong, and the administration gave away the store in a negotiation on our antidumping laws? The remedy would be simple--the Congress would not adopt the trade treaty. The President would quickly get the message and would learn how far is too far. While this would be harsh medicine, it would be what the doctor ordered. The Constitution gives the Congress an active role in the development of international trade policy. We are not to be a potted plant or a rubber stamp. There is good reason to believe that we will not go down this path absent the Dayton-Craig amendment. Let me be clear, as part of granting fast track authority to the President, Congress naturally will expect extensive consultation and notification procedures. Success in passing TPA will require a close partnership between the executive and legislative branches of our Government. The Constitution grants Congress the authority to promote international commerce. However, the Constitution also gives the President the responsibility to conduct foreign policy. Thus, the very nature of our Constitution requires a partnership between the executive and legislative branches of government in matters of international trade negotiations. That is what the trade promotion authority bill is all about--a partnership between the executive and legislative branches of government to enable U.S. consumers, workers and firms to be effectively represented at the negotiating table. The current TPA bill already establishes extraordinary procedures for congressional consultations and review of negotiations involving U.S. trade remedy laws. Under the procedures outlined in this bill, the President must give an advance report to the Senate Finance and House Ways and Means Committees at least 90 days before the United States enters into a trade agreement. This report must outline any amendments to U.S. laws on antidumping, countervailing duties and safeguards that the President proposes to include in a trade implementing bill. After the President notifies Congress of his trade negotiation intentions, the chairs and ranking members of the relevant committees then report to their respective chambers on their own assessments as to the integrity of the proposed changes to the TPA's objectives. The effect of these provisions would be to assure that the President and the Congress are on the same page regarding proposals in trade negotiations on subsidies, dumping, and safeguards. I might add that one need not look back very far to prove the resolve of President Bush's administration in upholding our trade laws. Just this year the President took action to save the U.S. steel industry and made a bold move to slow the unfair import of soft-wood lumber. This is not an administration, in my opinion, that is looking to weaken our trade laws. Here is what the administration has said about the Dayton-Craig amendment: . . . the amendment derails TPA without justification. The Bush administration has demonstrated its commitment to U.S. trade laws not through talk but through action. We have been committed not just to preserving U.S. trade laws, but more importantly, to using them. The administration initiated an historic Section 201 investigation that led to the imposition of wide-ranging safeguards for the steel industry. The administration's willingness to enforce vigorously our trade laws, in Canadian lumber and other cases, sends the clearest signal of our interest in defending these laws in the WTO. This administration takes the trade protection laws very seriously. The administration has also warned us about what may very likely happen if we adopt this seemingly good-government amendment. Here is what Secretary Evans, Secretary Veneman, and Ambassador Zoellick are worried about, if we adopt this misguided amendment: ``the rest of the world will determine that the U.S. Congress has ruled out even discussion of a major topic. Other countries will refuse to discuss their own sensitive subjects, unraveling the entire trade negotiation to the detriment of U.S. workers, farmers, and consumers.'' It seems to me that this is a dynamic that we ought to worry about. And I think this could very well extend to places where it can materially injure American leadership in high technology. As Ranking Republican Member of the Senate Judiciary Committee, I am particularly concerned that some nations might remain derelict, or become derelict, in their responsibilities of implementing the TRIPS provisions of GATT. These are the intellectual property provisions relating to international trade. It is the TRIPS provisions that govern such valuable intellectual property as patents and copyrights. We know that a great deal of American inventive capacity is tied to the software, information technology, entertainment, and biotechnology industries. We are the world's leaders in these vital areas. We should not encourage or allow other nations to unilaterally enact their own Dayton-Craig-type provisions that act to allow them to delay TRIPS implementation. All you have to do is to read the latest USTR report on special 301 with respect to intellectual property to see the potential scope of the problem. This lays out which countries need to do better in meeting their obligations under TRIPS with respect to intellectual property. Just so everybody knows, the priority watch list countries are: Argentina; Brazil; Columbia; the Dominican Republic; the EU; Egypt; Hungary; India; Indonesia; Israel; Lebanon; the Philippines; Russia; Taiwan; and Uruguay. In addition to these countries, Ukraine continues to be listed as a priority foreign country because it has been determined by USTR that it has a particularly poor record in this area. Dayton-Craig can only send a signal to these priority watch list countries that they can try to avoid their intellectual property responsibilities by saying that they want to take aspects of their IP laws off the table just like the United States may do with our trade remedy laws. So it is not only the traditional sectors like farming that have a stake in this but also the most cutting edge industries that rely on patents and copyrights. Let me say that I am a strong supporter of our trade remedy laws. In fact, I think I may have irritated a number of my colleagues on the Finance Committee and in the full Senate by helping to lead the charge on the steel issue this Congress. It seems like my friend Senator Rockefeller and I kept bumping into one another as we testified before the International Trade Commission in both the injury and remedy phases of the steel case. I am a proponent of trade but I am against dumping of products into the United States. I know what the dumping of steel has done to 1,400 laid-off steel workers and their families in Utah. Frankly, many of my colleagues might think my actions amounted to protectionism, but I think that the facts compelled the ITC and President Bush to conclude otherwise. I commend the strong action that President Bush took in response to the crisis in the steel industry. The steel 201 case was an example that our trade remedy laws can work. I part company with those who take the well-intentioned, but I think ultimately counter-productive, position that Congress should essentially get a second bite of the apple when it comes to the trade remedy laws. I have no doubt of the good intentions behind this amendment. But seems to me that you either believe, or disbelieve, in the wisdom and integrity of the fast track process. Either we have an up or down vote on the whole package or we don't. We should not be picking and choosing in a way that invites interminable debate and innumerable amendments. If you don't like an agreement--for any reason, not just the trade remedy laws but for the old-fashioned reason that it is just not a good thing for your state and your constituents, then by all means, vote against it. The Dayton-Craig amendment, if adopted, will invite similar responses from our trading partners. If we try to take these matters off the table, we can only guess what matters they will deem as inviolate. Let the trade negotiators negotiate. I have faith that no USTR--in either a Republican or Democratic administration--will ever give away the store on trade remedy laws. And, in the unlikely event that this occurs--the Constitution gives the Congress the final word. TPA is an essential tool for sound trade expansion policy, a tool we have been without since its expiration in 1994. For over a decade, the United States has too often sat on the sidelines while other nations around the world continued to form trade partnerships and lucrative market alliances. The lack of fast track has put the United States at a disadvantage during trade negotiations. I submit that this amendment does nothing less than hand trade opponents a tool to block future agreements that are overwhelmingly in America's interests. I urge my colleagues to oppose the Dayton-Craig provision.

Mr. HATCH

Mr. HATCH. Mr. President, I want to respond to remarks made by my colleague from Massachusetts about criticism of Professor Cassell's scholarship. Academic debate about such issues as Miranda and the death penalty is robust and uninhibited. It is part of that debate that scholars will criticize the work of other scholars. The validity of that criticism depends, of course, on the merits of the particular claims. Professor Schulhofer and Professor Cassell have engaged in a particularly long-running debate about the merits of Miranda and its potential costs to law enforcement. Schulhofer has criticized Cassell's work in various law review articles, and Cassell has responded in other articles. The full debate spans dozens of pages in various law reviews. Some of the relevant articles are as follows: Paul G. Cassell, Miranda's Costs; En Empirical Reassessment, 90 Nw. U.L. Rev. 387 (1996) (suggesting that confession rates fell after Miranda); Stephen J. Schulhofer, Miranda's Practical Effect: Substantial Benefits and Vanishingly Small Social Costs, 90 Nw. U.L. Rev. 500 (1996) (agreeing that rates may have fallen modestly, but arguing against significance of this fact); Paul G. Cassell, All Benefits, No Costs: The Grand Illusion of Miranda's Defenders, 90 Nw. U.L. Rev. 1084 (1996) (responding to Schulhofer's criticisms, noting decline in crime clearance rates after Miranda); Stephen J. Schulhofer, Bashing Miranda is Unjustified--and Harmful, 20 Harv. J. of Law and Public Policy 347 (1997) (arguing that post-Miranda clearance rate decline is explainable by other factors); Paul G. Cassell, Miranda's ``Negligible'' Effect on Law Enforcement: Some Skeptical Observations, 20 Harv. J.L. & Pub. Policy. 327 (1997) (responding to Schulhofer's criticisms); Paul G. Cassell & Richard Fowles, Handcuffing the Cops? A Thirty-Year Perspective on Miranda's Harmful Effects on Law Enforcement, 50 Stan. L. Rev. 1055 (1998) (multiple regression analysis of crime clearance rates suggesting structural drop in clearance rate function after Miranda). As explained in greater detail in those articles, Cassell believes that it is important to attempt to calculate the costs of the Miranda decision, even though the data that may be available for such a calculation is limited. Professors Richard A. Leo and Richard J. Ofshe have criticized Cassell's work on false confessions, often in particularly strong terms. Unlike the other academic exchanges in which Cassell has been involved, this dispute has been litigated in several court cases. Criminal defendants have offered the paid ``expert'' testimony of Professors Leo and Ofshe in support of their defenses. Prosecutors have presented Cassell's writings in response, arguing that Leo and Ofshe are not sufficiently reliable to be allowed to testify. Several courts have agreed with my critiques of their work. For example, in one fairly recent case, a Federal district court concluded that proffered testimony on false confessions by Professor Leo would not satisfy the reliability requirements for scientific evidence. The court held: ``Therefore the motion to call Dr. Leo will be denied. I find there is inadequate showing that the reasoning or methodology underlying the proffered testimony is reliable nor has it gained acceptance in the relevant scientific community.'' See United States v. Juan Carlos Higuera-Cruz No. 99CR 2975-TW (S.D. Cal. Feb. 8, 2000), tr. at 145. The court cited Cassell's research as one reason for reaching its conclusion. After reviewing Cassell's article in the Harvard Journal of Law and Public Policy, the court explained: ``Professor Cassell . . . concluded that all nine people were in fact, likely guilty. . . . That, at the very least, casts doubt on the methodology o[f] the study that Dr. Leo conducted and whether or not it is substantially or scientifically reliable or valid.'' See id. at 142-43. In a similar ruling handed down recently, a State district court judge in New Mexico also found Professor Leo to be unreliable. Tracking arguments that Cassell made in his article, the court explained: ``While the area of specialty of Dr. Leo is an important area of study, nevertheless, as recognized by Dr. Leo, there are considerable limitations which presently exist for the analysis of interrogation techniques and their bearing upon false confessions.'' State v. Lance Four Star, No. D-0101-CR-2000000276, op. at 1-2 (1st Jud. D.C. of New Mex., Aug. 23, 2001). Moreover, the court explained: ``The conclusions of Dr. Leo are arrived at from an analysis of a small number of cases (sixty) which are not randomly selected. . . . Even if one were to concede the methodology of determining whether a confession is false to a high probability, the numbers used are extremely small.'' Id. at 2. There are other cases to similar effect (both in the United States and Canada) finding either Professor Leo's or Professor Ofshe's work to be insufficiently reliable to be admitted in court. Professor George Thomas and Professor Cassell have enjoyed debating the Miranda issue in various fora. Their most extensive debate appeared in the UCLA Law Review. See George C. Thomas III, Is Miranda A Real- World Failure? A Plea for More (and Better) Empirical Evidence, 43 UCLA L. Rev. 821 (1996) (calling for empirical research on Miranda); Paul G. Cassell & Bret S. Hayman, Police Interrogation in the 1990s: An Empirical Study of the Effects of Miranda, 43 UCLA L. Rev. 839 (1996) (providing empirical research on Miranda); George C. Thomas III, Plain Talk about the Miranda Empirical Debate: A ``Study-State'' Theory of Confession, 43 UCLA L. Rev. 933 (1996) (noting that ``Cassell and Hayman have performed a great service to the criminal justice community by gathering, categorizing, and presenting the Salt Lake County data. Though I interpret some of the data differently than Cassell and Hayman do, the debate is richer because of their data;'' offering critique of the study). Professor Thomas has sent a letter to the Judiciary Committee strongly endorsing Cassell's nomination. Professor Charles D. Weisselberg has also critiqued Cassell's work. His critique, however, is really more of a summary of the critiques of other scholars. He also said that he was analyzing Cassell's work ``because it represents the most detailed and determined empirical effort to measure Miranda's costs.'' He also notes that Cassell's regression analysis was replicated, for two crime categories, by Professor John Donohue and that, after ``careful study, Donohue could neither substantiate nor reject Cassell's and Fowles's claims.'' Because Weisselberg is summarizing the critique of Cassell's research, more extensive responses are found in the law review articles responding to those critiques. Professor Welsh White has critiqued Cassell's use of an estimate of wrongful convictions from an Ohio judge. Professor White has found Cassell's work sufficiently meritorious to devote significant parts of a book to responding to his views. See Welsh S. White, Miranda's Waning Protections: Police Interrogation Practices After Dickerson 72 (2001) (noting that chapter 7 of the book will discuss my empirical arguments and chapter 8 will discuss my constitutional arguments). It may be relevant to note that Professor White teachers at the University of Pittsburgh School of Law. In September 200, Cassell delivered the Mellon Lecture at his school. Finally, in considering criticisms of Cassell's work, it might also be useful to consider praise of his work. Some of the published favorable comments on Cassell's work include: Yale Kamisar, Can (Did) Congress ``Overrule'' Miranda, 85 Cornell L. Rev. 883 (200) (noting ``the compelling presence on the scene of Professor Paul Cassell''); Judge Alex Kozinski, The Fourth Annual Frankel Lecture: The Relevance of Legal Scholarship to the Judiciary and Legal Community: Who Gives a Hott About Legal Scholarship?, 37 Hous. L. Rev. 295 (2000) (reviewing Cassell's academic research on Miranda, which lead to the Dickerson decision; concluding ``this strikes me as a monumental academic achievement . . . Cassell, through his academic writings, has given this issue legitimacy, and an argument that a mere five years ago would have been received with a chuckle may now turn out to be the law of the land''); Michael Edmund O'Neill, Undoing Miranda, 2000 BYU L. Rev. 185 (noting doctrinal uncertainties about Miranda and concluding ``Professor Cassell has offered perhaps the best answer to this perplexing question''). Thank you, Mr. President. I yield the floor.

Mr. HATCH. Mr. President, I yield 2 minutes to the distinguished Senator from California.

Mr. HATCH. Mr. President, it seems ironic to me that my colleagues are attacking Paul Cassell for having used yeoman efforts to uphold a Federal statute that was passed by the Congress of the United States in 29 U.S.C. 3501 which basically said that voluntary confessions will be admitted into evidence if there is just a technical mistake. I have to say I believe that is ridiculous. I think he had every right to try to uphold that statute. Personally, I think he was right in his arguments, but the Supreme Court found otherwise. He made it very clear that that is the law now and he will abide by it. I also disagree with my colleagues who characterize him again as manipulating statistics and figures. There are people who disagree with Paul Cassell, as is the case in academia. He disagrees with them. But I happen to know this is one of the most honorable, honest people who lives in our society today. I personally don't appreciate his being treated this way. It pains me to hear my colleagues attacking Paul Cassell, one of the most stellar nominees this body has ever had the privilege of considering for confirmation to the district court bench. I have to say that, even before those disparaging remarks were made, it was already an embarrassment to me that the Judiciary Committee and Senate leadership have taken nearly a year--328 days to be exact--to bring Professor Cassell's nomination to a floor vote. This is by far the longest time that any district court nominee has had to wait for a vote during this Congress. In fact, this vote has been delayed so long that the Administrative Office of the Courts declared the seat to which Professor Cassell was nominated a judicial emergency several months ago. But rather than just register my disbelief and disappointment, I would like to address the two issues that the critics and nay-sayers are bringing up: Professor Cassell's work in the areas of capital punishment and the so-called Miranda warning. Mr. President, don't let anyone fool you: The fact is that Cassell's views on these topics reflect thoughtful, responsible, mainstream legal ideas. And Cassell's work in these areas has been driven by nothing other that a deeply felt desire to improve the justice system for the benefit of all Americans. So, rather than let my colleagues misstate and mis-characterize those views, I would like to explain what Professor Cassell really thinks on these topics. First, capital punishment. Professor Cassell, like many scholars, jurists, and a majority of the population of the United States, supports capital punishment in appropriate cases. Cassell has argued that Congress and the States have the power to impose capital punishment for those who have committed the most serious offenses representing the wanton, willful, and reckless disregard for innocent human life. The fact that he has had the courage to say so in today's monolithic academic culture should be taken as evidence of his ability to think independently in the face of peer pressure--a quality we want in judges. But that courage has led people who disagree with him to attempt to reduce his views to mere caricatures. His critics are trying to make-believe that he has a callous attitude toward anyone wrongly sentenced to death. But nothing could be further from the truth. Cassell's support for capital punishment is tempered by his expressed commitment to ensure that innocent persons are not executed. Professor Cassell has said so in his writings and proven so by his actions. For instance, Professor Cassell has helped his law school, the University of Utah College of Law, raise funds for its recently formed Rocky Mountain Innocence Project, whose goal is to identify defendants who have been wrongfully convicted of capital or other crimes. Cassell has also offered the Project his legal services, pro bono, to help pursue the first case that the Project identifies. Cassell has also supported Utah's recently enacted Post-Conviction Testing of DNA Act. The act, one of the first in the country, provides for state-financed testing of potentially exculpatory DNA evidence when DNA testing was not available at trial. As you can see, Mr. President, Professor Cassell is a thoughtful and principled mainstream legal thinker whose views are entirely consistent with the majority of Americans. The second area of Cassell's advocacy and scholarship that I would like to address concerns the so-called Miranda warnings. But Mr. President, before I explain the underlying issues here, I think it is even more important to note that, even those who have disagreed with Cassell on the specifics of Miranda recognize that he would fair- mindedly follow the law. Michigan Law Professor Yale Kamisar, the nation's leading academic defender of Miranda, has said: ``Cassell's a smart guy, and even though he doesn't like Miranda, I think he'd apply it conscientiously as a judge.'' This observation--that Cassell is committed to following the law, is really all that any Senator should need to know. But let me explain further. Many people know that Professor Cassell argued in the Supreme Court last year in support of a statute enacted by Congress that purported to modify some of the complex rules that have grown up around the Miranda holding. The case was called Dickerson v. United States. In Dickerson, FBI agents questioned an armed bank robber and obtained incriminating statements. It was undisputed that these statements were given voluntarily. However, there was a dispute as to whether the Miranda warnings had been given to the bank robber before or after the questioning. After the district court ruled that these voluntary statements could not be used as evidence against the defendants, Cassell briefed and argued the matter in the fourth circuit as a friend of the court. Cassell's position was that Congress, in enacting a law known as Sec. 3501, had validly required these voluntary statements to be admitted into evidence, even if there was a technical dispute over the timing of the warnings. The Fourth Circuit agreed with Cassell. The Supreme Court later asked Cassell to argue that position on appeal, which he did. After considering the argument, a majority of the Supreme Court disagreed with Cassell's position and ruled for the other side. As Cassell told the Judiciary Committee, because of his personal involvement in that case, there's probably no one who understands the settled law on Miranda better than Cassell. Mr. President, any one who knows anything about law knows that a lawyer's arguments in court do not always necessarily reflect his or her own personal views on the topic. In fact, it is a very important principle in our legal system that clients on both sides of an issue deserve forceful advocates for their position. So it is simply specious for anyone to pretend that every argument in Dickerson reflects Professor Cassell's personal opinion. In fact, it is worse than specious--it is downright misrepresentation. That's because Professor Cassell has written law review articles--not for a client, but on his own--in which he argues for a more modest public policy change than he advocated in the Dickerson case. Cassell's own article urge that police officers should continue to give most of the Miranda warnings, but suggests that some of the warnings should be modified and replaced with the requirement that police officers videotape interrogations as better insurance that constitutional rights are respected. After all, a true record of police interrogations is much better evidence of voluntariness than the simple fact that the policeman remembered to read the Miranda warning. This argument has been adopted by many civil libertarians, who agree with Cassell that videotaping would more effectively protect against police abuses and suspects who are wrongfully persuaded to falsely confess. In other words, Mr. President, Professor Cassell's position on the Miranda warnings could actually offer more, rather than less, protection for Americans against possible abuse by police. So any attempt to pigeon-hole Professor Cassell as not supporting the rights of criminal defendants is a gross caricature of his reasoned and thoughtful analysis of how best to reform the criminal justice process in order to protect the very rights that some accuse him of disregarding. Mr. President, I urge my colleagues not to be taken in by inaccurate or false representations of Cassell's record. It is one thing for people to disagree--which I certainly respect. But it is quite another to carelessly or purposely mislead others into misunderstanding the real arguments. In the case of Professor Cassell, his positions on capital punishment and the Miranda warnings are thoughtful and reasonable views, held by many mainstream legal thinkers like himself. And the most important fact of all is that Professor Cassell knows the difference between the roles of the advocate and the judge, and he has committed to follow the law. I again urge my colleagues to vote to confirm Paul Cassell, who, I am convinced, will be a principled and fairminded judge who applies the law impartially as written and interpreted.

Mr. HATCH. Mr. President, I rise to voice my strong support for Professor Paul G. Cassell, who is President Bush's nominee to the District Court for the District of Utah. This nomination is very important to my home State of Utah. In fact, the chief judge of the Federal District Court in Utah is sitting in the audience. This is so important for them, for everyone in Utah, and to me personally. I would like to take a few minutes to introduce this exemplary lawyer to the Senate, and to explain why Professor Cassell is one of the most qualified people ever nominated to the district court bench. Listen to the highlights of Professor Cassell's resume: He graduated from Stanford Law School, where he was president of the Stanford Law Review and a member of the Order of the Coif--the highest honors you can have in law school. He served as a law clerk to then-Judge Antonin Scalia on the U.S. Court of Appeals for the D.C. Circuit, and to Chief Justice Warren E. Burger of the U.S. Supreme Court. He then went to the Justice Department, where he served as an Associate Deputy Attorney General, handling a variety of complex legal issues--including the efforts to defend the constitutionality of the United States Sentencing Guidelines, passed by Congress to regulate unwarranted sentencing disparity. Next, he worked as an assistant U.S. attorney in the Eastern District of Virginia. In that position, Cassell tried more than a dozen jury trials in felony criminal cases, obtaining guilty verdicts in every case that reached the jury. I would like to highlight a couple of cases he tried there. Cassell successfully prosecuted the CEO of a failed savings and loan for theft of $500,000; two investors and a real estate agent who had defrauded a HUD program; a drug dealer who was smuggling guns and a federally licensed firearms dealer who had aided him in this effort; and the notorious ``yellow glove'' bank robber, who had perpetrated a string of armed robberies in Virginia and Maryland. He also successfully prosecuted the largest seizure of crack cocaine in the history of National Airport at that time. For his efforts in cases such as these, Cassell was recognized by the Attorney General with a Special Achievement Award. Professor Cassell's impressive resume and his experience in court are no doubt the reason why a substantial majority of the ABA review committee rates Professor Cassell ``well qualified'' to be a federal judge. it is also the reason why a number of people who know Professor Cassell's work and character have written to me in support of his nomination. Mr. President, I ask unanimous consent to have a selection of such letters printed in the Record following my remarks.

Mr. HATCH

Mr. HATCH. Mr. President, I ask unanimous consent the order for the quorum call be dispensed with.